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1950 Supreme(Ori) 80
HIGH COURT OF ORISSA
Ray, C. J. And Narasimham, J.
COMMISSIONER OF HINDU RELIGIOUS ENDOWMENTS - Appellant
Versus
BATSA PATRA AND ORS. - Respondent
Second Appeal 164 Of 1947
Decided On : NOVEMBER 15, 1950
B.K.PAL, H.MOHAPATRA, P.V.B.RAO
The right of succession to the office of trustee of a temple may be hereditary even though the founder has not disposed of the right of sebaitship in the foundation deed or otherwise.
Headnote:
ORISSA HINDU RELIGIOUS ENDOWMENTS ACT, 1939 - SECTION 6 (5), 6 (14) - EXCEPTION TEMPLE - HEREDITARY TRUSTEE - RIGHT OF SUCCESSION TO THE OFFICE OF TRUSTEE - DEFINITION - USAGE AND CUSTOM - ACQUIESCENCE - ESTOPPEL.
Fact of the Case:
The plaintiff filed a suit under Section 64 (2) of the Orissa Hindu Religious endowments Act, 1939, declaring the temple to be a non-excepted temple. The Commissioner of Hindu Religious Endowments, Orissa passed an order declaring the temple to be a non-excepted temple. The plaintiff's case was that soon after the installation of the deity and the creation of the endowment the then Raja of Ghumsur appointed the ancestor of the plaintiff as the hereditary trustee and archaka and thus vested the trusteeship in his family. The defendant contended that even if it be recognised that the plaintiff's family were hereditary archakas of the temple and also managers it does not necessarily follow that the temple is an excepted one or else that they were hereditary trustees.
Finding of the Court:
The court held that the plaintiff has established that he is the hereditary trustee of the temple. The court further held that the acquiescence of the plaintiff in the levy of annual contributions from them under Sub-s. (2) of Section 69 of Madras. Hindu Religious Endowments Act were not payable by excepted temples, cannot operate as estoppel.
Issues: 1. Whether the temple is an excepted temple? 2. Whether the plaintiff is a hereditary trustee of the temple?
Ratio Decidendi: 1. The definition of 'excepted temple' in Clause (5) of Section 6 of the Orissa Hindu Religious Endowments Act, 1939 includes a temple, the right of succession to the office of trustee or the offices of all the trustees (where there are more trustees than one) whereof has been hereditary, or the succession to the trusteeship whereof has been specially provided for by the founder. 2. The definition of 'trustee' in Clause (14) of Section 6 of the Orissa Hindu Religious Endowments Act, 1939 includes a person, by whatever designation known, in whom the administration of a religious endowment is vested and includes any person who is liable as if he were a trustee. 3. The right of succession to the office of trustee of a temple may be hereditary even though the founder has not disposed of the right of sebaitship in the foundation deed or otherwise. 4. A long course of dealing regarding the sebaitship and the management, and the founder or his heirs acquiesced in it, prevailing for a length of time ripens into an usage prevailing in the institution, and persons who carry on the administration of the office of trustee and in that capacity, management of the trust property for the benefit of the trust, are as rightful sebaits as one could be by grant or disposition.
Final Decision: The appeal fails and is dismissed with costs.
NARASIMHAM, J.
( 1 ) THIS appeal is by defendant No. 1 the Commissioner of Hindu Religious endowments, Orissa, against the concurrent decisions of the two lower Courts commissioner of Hindu Religious Endowments vs. Batsa Patra and Ors. (15. 11. 1950. . . Page 2 of 15 gious Endowments vs. Batsa Patra and Ors. (15. 11. 1950. . . Page 2 of 15 declaring the plaintiff and defendants 2 and 3 to be hereditary trustees of the temple of Sri Dahibaban Mohaprabhu located at village Kulada in Ghumsur taluq. On 20-10-44 the Commissioner, H. B. E. , Orissa passed an order (Ex. 1) declaring the temple to be a non-excepted temple and thereupon the plaintiff instituted the present suit under Section 64 (2) of the Orissa Hindu Religious endowments Act, 1939.
( 2 ) IT is an admitted fact that the said temple was constructed by the Raja of ghumsur sometime before Fasli 1247 (1837 AD) and some lands were also endowed for the worship and bhog of the deity Sri Dadhibaban Mohaprabhu installed in that temple. The plaintiff's case was that soon after the installation of the deity and the creation of the endowment the then Raja of Ghumsur appointed the ancestor of the plaintiff as the hereditary trustee and archaka and thus vested the trusteeship in his family. In proof of this he has relied mainly on the oral evidence of three witnesses, two of whom Erukula Kasi subudhi (P. W. 2) and Raghunath Das (P. W. 3) are old persons aged about 80 years and 63 years respectively. Both the Courts have believed their evidence. Doubtless, if the claim of the plaintiff were to depend on the bare oral evidence of these witnesses there may be some room for argument. But I find that as early as 1862 the plaintiff's ancestor Naran Patra filed a statement (Ex. A-1) before the Inam Commissioner stating that his family were the worshippers of the deity and that they were performing the Puja and Bhog of the deity. Apparently his right was not recognised by the Inam Commissioner who in the inam register (Ex. A) completely omitted his name and entered the name of ratnapati as worshipper. That Ratnapati was one of the members of a committee appointed under the Religious Endowments Act of 1863 (Act XX of 1863) and it appears that the said Committee removed Naran Patra from his office as manager of the institution. But Naran Patra immediately filed a suit in the Court of the Civil Judge, Beharmpur (O. S. No. 19 of 1866) and the judgment and decree in that suit (Exs. 2 and 2a) show that the Court recognised that the said Naran Patra had the right to the office of the manager of the endowment. The Court therefore directed that Naran Patra should be restored to the office of manager. Thus there is a decree of a competent Court given as early as 1866 recognising the right of the plaintiff's ancestor Naran patra to the office of the manager. This decree has the effect of removing any adverse inference that may be drawn against the plaintiff's claim from the absence of any mention of the name of his ancestor in the Inam register. Since then the management of the endowment and the worship of the deity have been performed by the descendants of Naran Patra,
( 3 ) MR. P. V. B. Rao on behalf of the appellant urged that even if it be recognised that the plaintiff's family were hereditary archakas of the temple and also managers it does not necessarily follow that the temple is an excepted one or else that they were hereditary trustees. He has emphasised the fundamental distinction between a 'trustee' on the one hand and an 'archaka' on the other and urged that the plaintiff can succeed in the suit only if he can show that from the date of the founding of the endowment the trusteeship was hereditarily vested in his family.
( 4 ) IT is true that there is a fundamental distinction between an 'archaka' and a commissioner of Hindu Religious Endowments vs. Batsa Patra and Ors. (15. 11. 1950. . . Page 3 of 15 gious Endowments vs. Batsa Patra and Ors. (15. 11. 1950. . . Page 3 of 15 trustee'. An
